Blog by an experienced Divorce and Family Law Attorney to educate people with Family Law and Divorce issues, answering questions and explaining complicated matters in a straightforward and understandable way. This blog is a Newsletter, designed for general information only. The information presented in this blog is not, is not intended to be, and shall not be construed to constitute legal advice, nor to create an attorney-client relationship.

Sunday, February 3, 2013

QUESTION: My child's father and I just received a modification of support per his request. I was not given any credit towards daycare expenses I have been paying, and the judge just mailed the new order. Can I now file and ask for 1/2 of child care to be paid directly to our provider? Our provider is my mother, who is licensed and in business in our county. She lives with me full time, and has been taking care of our child since day 1 so we can both work. Now that support has gone down due to increased weekend timeshare, I cannot afford to pay child care on my own.
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MY RESPONSE: You should have brought that matter up at the last Child Support hearing. If you requested, at that hearing, that the father share in the child care expenses, and the Court denied your request, the Court likely won't allow you a second bite of the same apple. If you didn't bring that matter up at the last Child Support hearing, you could bring it up in a separate OSC, but you might not prevail for a number of reasons. A material change of circumstances has not occurred since the last OSC - the same circumstances prevail (other than the modification of custody and Child Support that resulted from that OSC). Also, the fact that your child care provider is your mother (as opposed to a 3rd party child care provider) could be a problem. However, it probably wouldn't hurt for you to file an OSC to seek an order for the father to pay 1/2 of the child care expenses (or even a proportionate share based on your respective incomes).

QUESTION: I have a 3 month old baby and i want to leave California to move to Texas with my sister. The father of the baby did sign the birth certificate but is not in the picture. Is it ok to move out of state? I never married the father of the baby.
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MY RESPONSE: Yes, you can move to Texas with your baby. There are no restraining orders in place to restrain you for doing so, and the father evidently isn't interested in a relationship with his child. You would best apprise the father of your move, and your Texas address, to protect you against parental kidnapping claims. Once your baby has lived in Texas for six (6) months, Texas will become your child's "home state" for Uniform Child Custody and Jurisdiction Enforcement Act purposes, provided no action for chid custody or visitation had been instituted in California before then.

QUESTION: I am a stay at home mom. I am remarried with 2 children. I have a previous marriage/divorce and a daughter. In 12 yrs I have only worked for 2 years when my current husband was out of work. My ex husband wants child support for my other daughter. I have no income. If I go to work, I will have to pay for child care for my other 2 children. which we are highly against. Can he get support? I am a noncustodial parent of my daughter with my ex-husband.
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MY RESPONSE: It is unlikely that your ex-husband can get an Order for Child Support against you under those circumstances. In order to get such an Order, if you are not employed, your ex-husband would have to persuade the Court to impute income to you, i.e., he would have to prove that job opportunities exist in your locale that you are qualified for. There is a possibility that the Court could issue a seek work order to require you to seek work, since both parties are responsible for the support of their children. A lot of parents need to put their children in child care to accommodate their need to work to earn money, so a mere objection to putting your child/children in child care, without more, may not be persuasive to the Court.

QUESTION: There was a restraining order against me that lasted for one year but it had been terminated for approximately three months at the time when she secretly recorded our face-to-face private conversation. I had no idea that she was recording our conversation. Is the recording legal?
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MY RESPONSE: If there was no restraining in effect at the time your wife made her surreptitious recording of you, granting her permission to secretly record the conversation, her recording of you was illegal and criminal, and you can object to the introduction of any evidence from that recording based on its illegality.

QUESTION: Is it possible for me to obtain 50/50 physical and legal custody of our 1-1/2 year old daughter? The mother and I were never married but we lived together prior to and including a couple months into our daughter's life. Since then we have split and she lives with her parents, while I live by myself. I have a stable job, and can support myself as well as my daughter.
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MY RESPONSE: It will depend to a large degree of the amount and quality of parenting (and/or visitation) that you have done since you separated from the mother. If you have not had significant involvement in your daughter's life since then, your custody/visitation will likely be awarded to you in a Paternity case in steps, starting with a little, and progressing with time, potentially to a 50/50 custody share. You are advised to consult with and retain the services of an experienced Family Law Attorney to file and pursue a Paternity case under the Uniform Parentage Act on your behalf.

QUESTION: My ex and I have 50/50 percent of child custody of our 15 year old daughter. Can I still get child support?
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MY RESPONSE: That largely depends upon your income and the other party's income. Child Support is based on each party's gross income (with certain deductions and adjustments) and the percentage of custodial timeshare. In addition, there may be add-ons for such things as extracurricular activities, private schooling, and other appropriate costs (such as child care for younger children where needed to enable the custodial party to work or go to school). Add-ons are usually shared 50/50, but if there is a significant disparity in the parties' incomes, a Court has the discretion, on request, to apportion add-ons based on the parties' respective incomes.

QUESTION: If I filed for a restraining order and it was denied, can I get money from him and get my stuff out of the house?
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MY RESPONSE: If your husband earns significantly more than you do, you could file a Divorce and an Order to Show Cause for Temporary Spousal Support and Attorney's Fees and Costs. You would best retain an experienced Family Law Attorney to represent you. If you can't find an attorney willing to represent you, you can go to your Superior Court's self-help clinic for assistance filing your own Divorce case and OSC.

QUESTION: How can I serve divorce papers do someone in jail without using a process server?
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MY RESPONSE: Unless your husband is willing to accept service and return a signed FL-117 Notice and Acknowledgment of Receipt (which would need to be served on him with your divorce papers by someone other than you over the age of 18 years), you will need to have your husband served by a Process Server (private, the Marshall or the Sheriff) who can get access to your husband in jail to serve the papers. Parties cannot serve papers in their own cases.

QUESTION: My daughter's husband walked out on her after 23 yrs. of marriage, stating he wants a Divorce. This was one year ago this month. He retained a "Paralegal" (save on Attorney Fees) to process paperwork etc. My daughter filled out and turned all documentation presented to her back to the paralegal. Her husband (my son-in-law) has done nothing. The paralegal is continueouly contacting him for the completed forms so she can present them to the court. My daughter constantly contacts her husband, but he keeps replying "I need another week" over and over. My daughter wants to get this over with and move on. He put her through so much anguish and heartbreak and now he's not doing anything. She is beside herself - he is the one who wanted a divorce. Now he is in hiding somewhere!! What are her options?? She wants this divorce now. He is playing mind games with her and she feels she is in limbo, not knowing what he is up to. What should she do?
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MY RESPONSE: Your daughter should at least consult, if not retain, an experienced Family Law Attorney to represent her in her divorce. If the Paralegal served her with a Summons and Petition, she has 30 days within which to file and serve her Response, to avoid her default being entered. If her husband earns significantly more than she earns, she would likely qualify for lifetime Spousal Support and Attorney's Fee orders. If she can't find a lawyer to represent her, she should at least have a consultation with an experienced Family Law Attorney. She can also go to the Superior Court's self-help clinic for assistance preparing the documents for her divorce. If her husband is concealing his whereabouts, any documents that need to be served on her husband can be served (by someone other than your daughter, over the age of 18 years) by mail sent to her husband's address of record - which would be the address used for him on the Summons and Petition for Dissolution of Marriage. If no divorce case was ever filed or served on her husband's behalf, she can file her own divorce case, with the assistance of a volunteer from the Court's self-help clinic. Service can be a problem if her husband is concealing his whereabouts; your daughter might need to hire a lawyer on a limited scope basis to have a due diligence search performed in an attempt to locate her husband, and if he is not located, to seek and obtain an order from the Court for Publication of Summons, to arrange for the Summons to be published in a newspaper of general circulation for four consecutive weeks, and to obtain and file Proof of Service by Publication with the Court. Once her husband is served, she can proceed to seek entry of his default if he has not filed his Response to her action for Dissolution of Marriage. Retaining an attorney would be the easiest way for her to obtain her divorce, but if she can't find a lawyer to represent her, she should make use of the self-help clinic's free assistance whenever needed

QUESTION: I was widowed in 2003 by my late husband's death from cancer. I remarried in 2010, perhaps too hastily. My current husband retired in 2010 with a pension, $75k/year (just a figure for discussion). He says that money, earned before we married, though paid out now as a monthly salary essentially, is not part of the community property, and that if I want to buy anything, "I need to save my pennies." I have a business in California and own my own commercial property, unencumbered. Each one of us has the property we owned prior to marriage set up in separate trusts. We have our separate checking accounts and pay bills separately. My current income of $75k/year, earned from my business is community property, but he says the monthly/annual pension payout he receives (which to me is income) is not community property because the pension was earned prior to our marriage. When we married, I thought our joint annual income, my business income and his pension income, was community property. I might note, that when we married, my business/home were 350 miles from him (and still are), so we have never lived under the same roof. I thought by now we would be. Now that we are in the second year of marriage, he has told me that he will never move to my town, a beautiful resort town (30 minutes from my door to ski lift). He said if we want to be together under one roof, I must close my business and move "over there." My plan would be to rent out my commercial property but the income generated from that would be a quarter of his pension. Or I would have to sell my property and live off the money, while he keeps the house he owns prior to our marriage. He will never put my name on the deed but he has made it clear that when he dies I will get everything. I don't want to live as a pauper waiting for my husband to die. Is his pension payout community property?
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MY RESPONSE: No. Those are tough choices that your husband gives you to make. His promise to leave everything to you when he dies is unenforceable. Even if he makes a will, he can always change it. If his pension was all earned before your 2010 marriage, i.e., if he was already retired when you married him, its payments are his separate property. Only to the extent, if any, that his pension was still being earned after your 2010 marriage, would the community have any interest in the pension payments, and that interest would be very small (if any).